Legal seachange: B'Tselem's report on Operation Pillar of Defense has clearly taken into account past criticism of its and other human rights groups' reports, as well as the IDF's evolved position.

From B’Tselem’s report on Operation Pillar of Defense published Thursday, one
can see that a seachange has occurred in the legal debate surrounding IDF
armed-conflict- related operations. The upshot is that B’Tselem and the IDF are
shockingly closer in their positions than ever before – though neither side is
likely to admit it publicly.

The report has clearly taken into account
both past criticism of its – and other human rights groups – reports and the
IDF’s evolved position.

What is new in the report?

Unlike Human Rights
Watch’s recent reports, B’Tselem waited until the IDF produced its own report
last month, and it in its own statement.

Although it still focuses on
Israel, this time it devotes more time to reviewing Hamas’ war crimes than in
the past.

Also, the terminology dealing with Hamas and the IDF clearly
reflects that Hamas’ violations are beyond debate as they are intentionally
aiming rockets at civilians, whereas most of the statements about the IDF are
unprecedentedly nuanced.

Instead of alleging clear war crimes violations,
the language is much more in the vein of IDF actions “raise suspicions” of
violations.

The opening of the analytical section on IDF actions says it
straight out that unlike with Hamas, arriving at conclusions about the IDF’s
actions “is not as simple.”

Instead of only using the more charged words
“assassinations” and “militants” for IDF air strikes on Hamas or Islamic Jihad
members who were hit while not actually “on the battlefield,” the report also
uses the more neutral and technical terms of “targeted killings” and persons
“who took a direct part in hostilities.”

Even the report’s headline in
attacking the second four days of the operation as problematic, implicitly
recognizes the early days as non-problematic or less so.

Monitor, while
slamming the report for many of its interpretations of the law of armed conflict
in complex fighting situations, recognizes its admission that B’Tselem cannot
fully assess Palestinian allegations.

The report meticulously
acknowledges the challenges the IDF faces when Hamas mixes in with civilians. It
records the army’s efforts, both both general and specific – with narratives
recounting telephone calls from security personnel to get civilians to evacuate
their houses – to avoid civilian casualties.

Part of this acknowledgement
shows that the IDF, both from its own self-motivated process of “learning
lessons” and from external critiques from groups like B’Tselem, significantly
adjusted its procedures in Pillar of Defense, as opposed to Operation Cast Lead
in 2008-2009.

Another sign of the IDF’s evolved position is that its
initial report on Pillar of Defense came out only five months after the
operation – practically light speed compared to how quickly reports were issued
after past operations.

This haste may also be one reason why B’Tselem
waited to publish its report until it could include more information from the
IDF.

Finally, what is left to debate between the sides is far more
nuanced.

Instead of B’Tselem’s positions being: “Everything you did was a
war crime” and the IDF’s: “We were perfect,” the IDF has already admitted that
some of the attacks included intelligence mistakes as to the identity of people
being targeted and the number of civilians nearby.

B’Tselem’s accusations
are that the IDF’s warnings are not effective enough, that its definition of
what is a legitimate military action is too broad and that its report was too
vague on details.

These are respectable robust debates to have between
the IDF and human rights groups, using legal and neutral language with no
baggage; and since the IDF’s main job is to win wars and B’Tselem’s main job is
to protect civilians, there would be no expectation that the two sides will ever
completely agree.

Regarding allegations that the IDF’s first report was
vague, even former IDF international law division head Liron Libman previously
told The Jerusalem Post that he thought the initial report was somewhat vague,
although he said this might be accounted for by its fast publication, and he
noted that there would likely be a follow-up report on open
investigations.

Though some gaps are still huge, it is difficult to deny
that a seachange has occurred, and that the two sides are speaking a much more
similar and nuanced language than ever before.